TIUMALU v R [2019] NZCA 234

TIUMALU v R [2019] NZCA 234 [19 June 2019]NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 203OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA271/2018[2019] NZCA 234BETWEEN SAMUELU TIUMALUAppellantAND THE QUEENRespondentHearing: 22 May 2019Court: Kós P, Peters and Mander JJCounsel: S N B Wimsett and S T Patia for AppellantY V Yelavich for RespondentJudgment: 19 June 2019 at 9.30 amJUDGMENT OF THE COURTA The application for an extension of time to appeal is granted.B The appeal is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Mander J)[1] The appellant, Samuelu Tiumalu, was convicted following a jury trial on twocharges of sexual violation by rape, two charges of male assaults female, charges ofassault with intent to injure, injuring with intent to injure, and of threatening to kill.He was sentenced by Judge Moses to 12 years' imprisonment with a minimum periodof imprisonment (MPI) of six years.1 Mr Tiumalu appeals the imposition of the MPI.Background[2] The complainant was in a relationship with Mr Tiumalu for some four months.The charges relate to three separate incidents that occurred over that period. In thefirst month of their relationship Mr Tiumalu was together with the complainant on abed watching television when he tried to strangle her. When the complainantattempted to leave the room, Mr Tiumalu blocked her from doing so and snatched aphone away from her before she was able to escape out a window.[3] The second incident occurred when Mr Tiumalu and the complainant beganarguing after children had been dropped at school. Mr Tiumalu drove the complainantto a secluded area. He locked the car doors, took the complainant's cell phone, andpunched her repeatedly in the head. Despite the complainant screaming for him tostop, the attack only ceased when another vehicle approached. The respite was onlytemporary. After the vehicle left the area, Mr Tiumalu climbed on top ofthe complainant and strangled her. She feared for her life. Mr Tiumalu then produceda pocket knife, which he pressed against her stomach. Mr Tiumalu threatened to killher and then himself. The complainant managed to calm him. However, he theninstructed her to remove her clothing and proceeded to rape her.[4] The final incident occurred at a time when the children had left the house.Mr Tiumalu closed the windows and locked the doors of the house. The complainanttold Mr Tiumalu that she did not wish to be in a relationship with him anymore anddid not love him. He became angry and upset. The complainant, fearful ofMr Tiumalu, sought to escape out the window of the bathroom, but Mr Tiumalufollowed her and prevented her from doing so. He instructed her to take her clothesoff, and again raped her. Later that morning, two Mormon missionaries came to thehouse. As they left, the complainant went back into the house. Mr Tiumalu grabbedthe complainant and pushed her to the ground. She escaped and approached1 R v Tiumalu [2018] NZDC 8094 [Sentencing notes].the missionaries. They instructed her to go to a neighbour's house, from where thepolice were called.The imposition of the MPI[5] Judge Moses considered that the 12 year sentence of imprisonment should beaccompanied by an order that Mr Tiumalu serve at least 50 per cent of that sentence. 2The Judge was not satisfied that the imposition of the 12 year term without an MPIwould be sufficient to denounce Mr Tiumalu's conduct and hold him accountable forthe harm he had done to the complainant and to the community, nor that it would besufficient to deter him and others from similar offending. The Judge consideredthe 12 year term standing alone would also not be sufficient to protect the communityfrom Mr Tiumalu. As a result, the six year MPI was imposed.[6] In imposing sentence, Judge Moses observed the aggravating features ofMr Tiumalu's offending.3 In particular, the use of actual and threatened violencebeyond that occasioned by the commission of the two rapes and the repetition of thatviolence over a period of four months. The significant impact on the complainant, andher vulnerability as a woman considerably smaller than Mr Tiumalu, who wasdescribed as a large and strongly built man, were also noted. The complainant andMr Tiumalu were in a relationship. As a result, in the Judge's view, the offendingrepresented an abuse of trust. He also considered there had been a degree ofpremeditation in respect of the final offending, which included Mr Tiumalu takingthe step of closing the windows and locking the doors of the house.[7] In calculating the appropriate length of sentence, Judge Moses took intoaccount Mr Tiumalu's previous convictions for violence.4 These includedthree convictions for male assaults female between 2000 and 2009, five convictionsfor cruelty to children, and one of causing grievous bodily harm to a person withreckless disregard, all entered in 2002. Additionally, Mr Tiumalu has more recentconvictions for breaching protection orders.2 At [19].3 At [10].4 At [12].[8] A disturbing aspect of Mr Tiumalu's presentation is his blanket denial of hisoffending against the complainant who he blames for the position he finds himself in.As Judge Moses noted, he has no remorse or insight into the harm he has caused. Therisk of him reoffending and of causing harm to others is assessed as high.5The appeal[9] There are two aspects to the challenge to the MPI. The first and preliminarycomplaint is that the MPI was imposed by the Judge without notice to Mr Tiumalu thatsuch an order could form part of the sentence. The issue of an MPI was neitheraddressed in the Crown's submissions, nor does it appear from enquiries made that itwas raised with counsel at the sentencing hearing.[10] Secondly, it was disputed that in the circumstances of this case the purposes ofsentencing identified by the Judge required an MPI to be imposed. Mr Wimsett, forthe appellant, submitted that the 12 year sentence of imprisonment was sufficient byitself to render Mr Tiumalu accountable for his offending and to denounce his conduct.It was submitted that an MPI was unnecessary to deter Mr Tiumalu or others fromoffending in this way in the future.[11] In respect to personal deterrence, reference was made to Mr Tiumalu's mentalstate. In particular, to his distress at having been convicted and the suicidal thoughtshe has expressed. Mr Tiumalu is of Samoan descent and only has a low to moderategrasp of the English language. It was submitted that, as a result, the sentence will bemore difficult for him to serve, and that these factors in combination render the lengthof the sentence harsh, and one that will sufficiently deter Mr Tiumalu in the future.[12] Emphasis was placed on Mr Tiumalu having no history of sexual offendingwhich, it was submitted, pointed against there being a need for an MPI in order toprotect the community from that type of offending. Mr Wimsett submitted that an MPIwould have a crushing effect on Mr Tiumalu and extinguish any motivation he mayhave to rehabilitate himself. It was contended that the Judge had not justified why he5 At [13]–[14].had taken a figure of 50 per cent in imposing the MPI and that a lesser period wouldhave been appropriate.Discussion[13] Where a determinate sentence of imprisonment of more than two years isimposed, a court may impose an MPI that is longer than the ordinary one-third periodthat would otherwise apply under s 84(2) of the Parole Act 2002, if it is satisfied thatsuch a period would be insufficient to either hold the offender accountable for the harmhe or she has done, or to denounce, deter, or protect the community from the offender.6An MPI of up to two-thirds of the full term of the sentence can be ordered to beserved.7[14] Mr Wimsett sought to place some reliance on a number of cases where MPIshave been set aside on appeal to this Court.8 We do not consider that greatly advancesthe appeal when regard is had to the individual circumstances of the offenders in thosecases, which explain why an MPI was not considered appropriate.Unlike the appellants in those cases, Mr Tiumalu has a poor history of violentoffending against women, which includes the punching and dragging of one partnerby her hair and the assaulting, threatening and strangulation of another.[15] Against that past background, the need for an MPI was required to be assessedby taking into account the circumstances of Mr Tiumalu's present offending, whichinclude the repeated rape and strangulation of his partner, and threats to take her life.Mr Tiumalu's denials and failure to demonstrate any insight or inkling ofunderstanding of the effects of his violence, not just on the present victim but hisprevious partners, demonstrates the elevated risk of reoffending he presents andthe need for community protection.9 Not only must the risk of Mr Tiumalureoffending be taken into account but also the nature of that risk. In that regard,Judge Moses expressed his real concern that Mr Tiumalu may end up killing someone6 Sentencing Act 2002, s 86(1) and (2).7 Unless this exceeds 10 years: s 86(4).8 Harrison v R [2011] NZCA 642; R v Wirangi [2007] NZCA 25; and B (CA182/2018) v R [2019]NZCA 18.9 Ali v R [2019] NZCA 35 at [10]; R v Taupau HC Auckland CRI-2005-090-9395, 2 May 2008 at[40]; Pomare v R [2015] NZCA 191 at [11]; and R v Wellm [2009] NZCA 175 at [18].with whom he is in an intimate relationship.10 The victim impact statement describesthe severe effects of Mr Tiumalu's offending on the complainant. She considersherself fortunate to have lived through the experience.[16] In the course of oral argument Mr Wimsett submitted that Judge Moses haderroneously taken into account evidence of past sexual offending called at the trial aspropensity evidence but for which he had previously been acquitted. He submittedsuch evidence could not be drawn upon by the sentencing Court when assessingthe imposition of a MPI. We do not consider we need to address this argument becausewe have concluded that, even if Judge Moses possibly took into account that part ofthe evidence, the index offending against the present complainant together withMr Tiumalu's previous convictions for violence against two other women, provided asufficient basis upon which to justify the MPI.[17] Turning to the complaint that Mr Tiumalu was not afforded the opportunity tomake submissions about the imposition of an MPI, we accept that the parties shouldhave been provided with the opportunity to be heard on that issue.11However, a sentencing court is not precluded from raising the issue of an MPI of itsown volition despite it not being raised by the Crown.12 Furthermore, it can beanticipated in cases such as the present which involve serious violence that MPIs willordinarily form part of a sentencing court's thinking when considering an appropriatesentence.13 Insofar as Mr Tiumalu is aggrieved at the imposition of the MPI withouthaving been heard on the issue, the present appeal has now provided him with thatopportunity.Decision[18] The imposition of an MPI involves a degree of discretion. This Court hasrecognised the sentencing Judge should be extended a margin of appreciation, both inthe making of such an order and its length.14 In cases of serious violence, denunciationand deterrence are considered to be important sentencing values which, together with10 Sentencing notes, above n 1, at [15].11 Wells v R [2015] NZHC 2075, at [74].12 R v Wirangi, above n 8, at [15].13 R v Taueki [2005] 3 NZLR 372 (CA) at [57].14 Skipper v R [2013] NZCA 104 at [27].the need to protect the community will, not uncommonly, result in the imposition ofan MPI.15[19] Even if appraised afresh, Mr Tiumalu's serious violent and sexual offending,his violence against previous partners, and his complete denial or preparedness toacknowledge his offending, leads us to conclude that an MPI is justified. We do notconsider the length of the order was excessive in the circumstances.Result[20] The application for an extension of time to appeal is granted.[21] The appeal is dismissed.Solicitors:Crown Solicitor, Manukau for Respondent15 R v Taueki, above n 13, at [57]; and R v Adams [2007] NZCA 211 at [67].